Expert's view on assisted suicide ruling

When the 1961 Suicide Act was drafted, Parliament never envisaged that a person would take his or her terminally ill loved one abroad to end their life.

What to do in these circumstances was the question before the Law Lords in the Debbie Purdy case in July 2009, in what was to be the last Law Lords' decision in their present structure at Westminster before a new Supreme Court would substitute this ancient institution in October 2009.

What Mrs Purdy was seeking in the House of Lords was a guarantee her husband would not be prosecuted if he accompanied her to a centre in Switzerland.

The 46-year-old multiple sclerosis sufferer was seeking information and clarification of the law on assisted suicide.

What she wanted was an assurance from the Director of Public Prosecutions (DPP) her husband, Omar Puente, would not be prosecuted for murder under section 2(1) of the 1961 Act, if he accompanied her to the Swiss Dignitas centre thereby "assisting" her suicide (R [on the application of Purdy] v Director of Public Prosecutions [2009] UKHL 45, 30 July 2009).

Human rights

Summarising their Lordships' judgement, Lord Hope stated the "relatively reluctant participator" in this type of crime, namely assisting a loved one's suicide, should not be prosecuted, particularly in the absence of any statement of policy or sufficient guidance by the DPP.

Debbie Purdy had lost her original legal challenge at the High Court in October 2008 when the court had merely followed the House of Lords' and European Court of Human Rights' rulings in the case of motor neuron disease sufferer Diane Pretty, where the DPP had refused her husband immunity from prosecution if he assisted her suicide.

The 1961 Suicide Act makes it clear: assisting suicide is a criminal offence

Both Mrs Pretty and Ms Purdy had challenged the 1961 Act, by arguing the law infringed their human rights.

They said under Article 8 of the European Convention on Human Rights (ECHR) their right to privacy should be respected and they should be able to end their lives and to ask a loved one to assist them.

To date no charges have yet been brought against UK citizens who have assisted their loved ones to die at the Swiss clinic.

Only eight cases have been referred to the DPP for a decision to prosecute and no further steps were taken on the ground there was insufficient evidence.

On 9 December 2008 the DPP decided not to prosecute the parents and a family friend of 23-year-old Daniel James, who had sustained a serious spinal injury in a rugby accident in Nuneaton. He had travelled with his parents to the Swiss Dignitas centre to end his life.

The only reason given by the DPP at the time was that a prosecution would not be in the public interest. He said he took this decision personally and publically but this case was an exception.

Since then other cases appear to have been discontinued by the police on public interest grounds.

Criminal offence

This presented Ms Purdy with a dilemma. Was the risk of prosecution of her husband now high or low? If the former, would she have to travel to Switzerland alone to end her life? Ms Purdy and Mrs Pretty were not alone in finding themselves in this predicament.

Diane Pretty failed in her bid to get immunity for her husband

How can we best interpret the most recent House of Lords' ruling? When presenting their last judgement in Parliament on 30 July 2009, their Lordships emphasised at the outset that they did not change the law in order to decriminalise assisted suicide.

This means, the Law Lords did not grant Ms Purdy the right to die, thereby making euthanasia legal in the UK. But they addressed the offence of "assisted suicide" and "complicity" within the meaning of section 2(1) of the 1961 Act.

The 1961 Suicide Act makes it clear: assisting suicide is a criminal offence; the High Court made this quite clear in its ruling in Purdy 2008 and the DPP could not turn a blind eye to persons who assisted their terminally ill or severely disabled loved ones to die.

When Parliament drafted the 1961 Suicide Bill its prime intention was to decriminalise suicide and attempted suicide. At the same time, they widened the scope of the offence of assisting suicide. Before the 1961 Act, suicide was a criminal offence (felony) and was regarded as self-murder (felonia de se).

This had implications for the dead person's remaining estate, where the property of the person who had committed suicide had to be forfeited.

A person who assisted or encouraged the suicide of another was guilty of murder, applying equally to a person who was the survivor of a suicide pact (Rex v Dyson (1823); R v Croft [1944]).

Section 2(1) of the 1961 Act created a new offence of "aiding and abetting" suicide - also known as "secondary participation in crime". That person is guilty of murder and can receive a prison sentence of up to 14 years.

'Informed decision'

Ms Purdy also sought clarification of the law whereby someone was "aiding and abetting" someone to commit suicide in a country where mercy killing or voluntary euthanasia has been decriminalised, such as Switzerland or the Netherlands. Section 3(3) of the 1961 Act states that "this Act shall extend to England and Wales only".

Would this not logically mean that if Mr Puente wanted to take his wife to the Swiss centre he would not be guilty of an offence within the ambit of section 2(1) of the Act?

Mrs Purdy simply requested information from the Law Lords following recent decisions by the DPP not to prosecute. She did not seek immunity

Does it not follow that assisting suicide outside England and Wales does not amount to a criminal offence? So far, there has not been a prosecution for assisting a suicide that has taken place outside the UK jurisdiction.

Lord Pannick QC, for Debbie Purdy in the House of Lords' action, directed his argument to section 2(4) of the 1961 Act, which provides that no proceedings shall be instituted for this type of offence except by consent of the DPP.

Furthermore, counsel for Mrs Purdy argued that section 2(1) of the 1961 Act constitutes an interference with her right to respect for her private life under article 8(1) ECHR (right to privacy) and that under Articles 6(1) ECHR, the DPP is a "public authority", making it unlawful for him to act in a way which is incompatible with a convention right.

Mrs Purdy simply requested information from the Law Lords following recent decisions by the DPP not to prosecute. She did not seek immunity.

Instead she wanted to be able to make an informed decision as to whether or not to ask for her husband's assistance, since she is not willing to expose Mr Puente to the risk of being prosecuted by the DPP if he assists her.

She wanted clarification on the law so she could take a decision that would affect her private life.

Throughout her legal actions, Ms Purdy has presented the courts with a number of statements by people in similar situations but who had chosen to travel alone to foreign clinics thereby avoid the risk of their loved ones being prosecuted.

Parliament matter

If changes in the law regarding assisted suicide are to be made, this must be a matter for Parliament. In 2005, the Law Commission proposed changes in the law on mercy killing which would reform the present murder laws.

In July 2009 the House of Lords listened to Lord Falconer of Thoroton's proposed amendment to the Coroners and Justice Bill, whereby he sought to define in law acts which were not capable of encouraging or assisting suicide (Hansard, HL Debates, vol 712, 7 July 2009, cols 595-634).

There is no doubt as to the strength of feeling in both Houses of Parliament as to the difficulties such a change in the law might bring.

Many argue this leaves the law in a highly unsatisfactory state. If assisted suicide or mercy killing is to be permitted by law, it is essential that the permission includes suitable safeguards of an appropriate rigour and specificity.

The Dutch scheme, for example, includes an elaborate medically-supervised and executed procedure.

So far, the DPP has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful.

This means that so far the DPP remains governed by existing law on murder.

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